ConocoPhillips claimed that the company had tested the water quality around the Penglai 19-3 oilfield in north China's Bohai Bay, and said there was no evidence to suggest the spill harmed the environment, according to the Wall Street Journal on Dec. 16.

On Dec. 19, the company clarified its statement, saying that the sustainable effects to the environment were very small.

"If ConocoPhillips denies the pollution, there would be no evidence to prove the shrimps and fishes were killed by oil spill pollution," Jia Fangyi of Beijing Huacheng law firm said. He said he was worried about the obstacles of adducing evidences.

Jia was the first lawyer who brought to court complaints on behalf of the fishermen. He submitted the fishermen's environmental commonweal complaints to three courts: Hainan Provincial Higher People's Court, Qingdao Maritime Court and Tianjin Maritime Court.

However, the courts refused to file the suits, citing insufficient evidences, which gave greater burden to the fishermen to adduce evidences themselves. "Victims only have the responsibility to testify basic facts such as water pollution and marine products dead. But the information on oil spill volume and scales should have been provided by the polluter," Jia said.

According to article 66 of the Tort Liability Law of China, where any dispute arises over an environmental pollution, the polluter shall assume the burden to prove that it should not be liable or its liability could be mitigated under certain circumstances as provided for by law, or to prove that there is no causation between its conduct and the harm.

Yin Fuqiang, a lawyer of lawov.com told China Economic Weekly that the environmental agencies such as the North China Sea branch of the State Oceanic Administration must publish pollution statistics. Fishermen can appeal to the courts for the data, but the premise to retrieve the information for sufficient evidence is that courts had first decided to take up the case – quite the Catch-22.

"The deadline of [whether to file the case] the case has passed at the beginning of December, but the Qingdao Maritime Court didn't give me any response," Jia Fangyi told China Economic Weekly.

On Dec. 12, 107 fishermen submitted a lawsuit at the Tianjin Maritime Court against ConocoPhillips China. They asked the oil company to pay 490 million yuan (US$77 million) for economic damages to the 107 affected fishermen in Laoting County, Hebei Province. But ConocoPhillips denied the pollution before the court had decided whether to take up the case.

Jia said that the court did not take up the case or make a ruling because it said this was a new type of case and they had to turn it over to a higher court. "Neither keeping silent nor discussing it with their leaders is in accordance with court procedural law," Jia said. "I call this process a 'Silence Gate.'"

Yin Fuqiang said that if courts do not take up the case, it must announce its decision. The formal rejection allows plaintiffs to appeal to higher courts. Without it, the fishermen are in a limbo. Furthermore, because court proceedings are not recorded or videotaped, the fishermen cannot even make complaint about the judges.

Adding to the fishermen's frustration is the lack of progress on ConocoPhillips' promised compensation fund. More troubling still, the North China Sea branch of the State Oceanic Administration had said that it would sue ConocoPhilips for its spill on behalf of China. However, when China Economic Weekly called it recently regarding the lawsuit, branch spokesperson said: "It is none of our business. We know nothing about it."

During the 23rd session of the 11th NPC Standing Committee, the Civil Procedure Law was amended. Wang Shengming, vice director of the Commission of Legislative Affairs of the NPC Standing Committee said that deputies of NPC suggested adding public interest litigation system in the Civil Procedure Law due to increasing environmental pollution and food safety incidents. According to the draft, social groups can appeal to courts for acts jeopardizing public interests, such as environmental pollution.

"Although the official law has not come out, it is written in the amendment's draft, which means our works are not in vain," Jia said.

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